The coronavirus pandemic forced many companies to transition to remote work environments with little, if any, notice. In the face of ongoing remote work, you should provide employees with clear guidance on expectations and obligations. For this reason, it is advisable to revisit your remote employment policies and agreements. The following is a list of best practices for employers managing a remote workforce.
- Define the Employment Relationship
Defining the terms of an employment relationship is necessary to protect employees, assure appropriate taxes are filed and reported, and promote compliance with employment laws. Generally, the difference between hiring an employee and hiring an independent contractor has an impact on tax obligations, ownership of work product, benefits, and various other legal obligations. This line can become blurred in a remote work situation. Although the classification of an individual as an employee is ultimately determined by the realities of the work they perform, and not simply the terms of their agreement, clearly stating in the employment agreement that the relationship is for at-will employment will ensure clear expectations from the start of the remote employment.
- Establish Ownership of Intellectual Property
The Copyright Act of 1976 addresses ownership of work product developed by employees. It defines “work made for hire” as work prepared by an employee within the scope of his or her employment. If a work is made for hire, the employer is considered the “author,” even if the employee actually created the work. However, determining whether a work is “made for hire” under the Copyright Act can be difficult. The relevant inquiry may be complicated if a remote employee uses his or her own equipment to develop and store work product for his or her employer. Therefore, a remote employment agreement should expressly address what works are the property of the employer.
- Address Security and Confidentiality
Technical security and confidentiality, including confidentiality of trade secrets, can be easily compromised in a remote work setting. An employment agreement should ensure remote employees take active measures to protect their workplace security and the integrity of confidential information.
- Set Clear Guidelines and Expectations for Hours of Work
It is important to establish clear guidelines and expectations regarding hours worked. This involves commitments from both the employer and the employee. On the one hand, the employee must ensure accurate timekeeping and logging of hours worked, and on the other hand, the employer must ensure the employee is properly compensated for all hours worked. In order to meet these standards, the agreement should contain provisions reminding employees of the need to meet performance expectations regardless of where work is performed, as well as provisions establishing work schedules, as well as leave policies.
- Address Employees’ Working Environment
It is imperative that employers consider and address employees’ working environments and ensure that they are properly equipped to get the job done. If employees need equipment to work remotely, employers may want to consider how to provide such equipment, including computers and monitors. It is at the employer’s discretion whether to pay for the cost of equipment, but regardless, the arrangement should be clearly delineated in the agreement. Specifically, when issuing devices or equipment to employees, the employee should sign an acknowledgment of receipt, affirm they are responsible for safeguarding the items against damage or theft, and specify who is responsible for the cost of maintaining or replacing damaged equipment.
Lastly, employers should establish standards for a home office, such as requiring a designated and dedicated work area. In general, an employee injury or illness is compensable under workers’ compensation if it “arises out of and in the course of employment,” regardless of where the injury occurs. However, in light of differing state laws regarding what is or is not considered a “work-related injury,” employers should define each employee’s designated work areas, as well as the employee’s normal working hours and specific job duties, to help determine what may—and may not—be deemed a work-related claim.
These are only a few considerations to keep in mind as you develop policies and agreements for your remote workforce. Not only will these terms protect your business interests, but setting clear expectations up front can encourage employees and ensure better performance and work product down the line. If you need assistance navigating the complexities of drafting policies and employment agreements for your remote workforce, please contact the authors of this blog, Camilla Hundley and Sara Nasseri, or a member of PilieroMazza’s Labor & Employment Group.
